If Roe vs. Wade is Overturned, is that the end for Griswold vs. Connecticut as well?

[MarkD]

This is a point I've made once before on Constitution and Law board, and it bears repeating now.

Sure, no state, or county, or city/town/village is realistically going to pass a law to simply ban contraceptives, the way Connecticut had passed such a law way back in 1879. But in order to persuade the Supreme Court to overturn Griswold, no state or local government has to resort to that drastic of a measure. Griswold was father to two children: Eisenstadt v. Baird and Carey v. Population Services Int'l. In the latter case, the Court struck down a state law that prohibited the distribution of contraceptives to minors. Mimicking THAT law is a more realistic possibility these days, and it wouldn't even have to be a statewide law in an Atlas blue state. All that needs to happen is some conservative school district somewhere prohibits the faculty members of the schools from distributing contraceptives to students. A school district policy like that will quickly be challenged, the plaintiffs will invoke Carey for why they deserve to win, and that the school district is acting unconstitutionally. The attorney for the school district will argue in rebuttal that Carey, Eisenstadt, and Griswold were all wrongly decided. The attorney for the school district will say that there is not truly any constitutional right to use contraceptives, not in penumbras that emanate from the Bill of Rights (Griswold), or in the Equal Protection Clause (Eisenstadt), or in the Due Process Clause (Carey). The Supreme Court Justices who overturn Roe will likely agree with that argument by the school district, and so out the window goes Griswold.

And if Roe and Griswold both go out the window, then eventually Lawrence v. Texas goes bye-bye too.

[MarkD]

From another thread:

End roe v wade NOW

BAN abortion

Ending - overturning - Roe v. Wade will not result in banning abortion nationwide. Overturning it will result in returning control of the issue to the states. Most, if not all, (Atlas) red states will still allow abortion to be legal, and many (Atlas) blue states will ban abortion. Women who are in the latter states who need to get an abortion will be able to travel to the former states to get one.

I worry about what else the Supreme Court majority will say if they do overturn Roe. Roe was a misinterpretation of the Due Process Clause of the Fourteenth Amendment. If the Court does overturn Roe, will they also provide the country with a correct explanation of what the Due Process Clause means? If the Court explains the DP Clause in a manner similar to the way the plurality opinion in Webster v. Reproductive Health Services (1989) explained it, then that will mean the Court will continue to give this country an erroneous interpretation of the Clause and that the only reason the Court is upholding state laws that ban abortion is because the Justices politically agree with anti-abortion laws. It will mean that the Court's ruling will still be politically motivated, and the Court will then come under political pressure to reinstate Roe.

Attempts to overturn Roe will continue as long as the Court adheres to it. And, so long as the decision remains, the Court will be perceived, correctly, as political and will continue to be the target of demonstrations, marches, television advertisements, mass mailings, and the like. Roe, as the greatest example and symbol of judicial usurpation of democratic prerogatives in this century, should be overturned. The Court's integrity requires that. But even if the case is relegated to the dustbin of history where Dred Scott and Lochner lie, the right of privacy and the judicial techniques and attitudes it represents are likely to remain. A more fundamental rethinking of legitimate judicial power than the mere demise of Roe would signify is required. (Robert Bork, "The Tempting of America," (1990), page 116.)

If you have fully read the recent Supreme Court decision striking down Roe vs. Wade (and Planned Parenthood vs. Casey), do you think they provided the proper justification (in your opinion) for their decision?

Absolutely not!
In Roe, the Court cited the Due Process Clause of the 14th Amendment and took for granted that any and all "fundamental rights" are protected by that clause. Then the Court also added the 9th Amendment as a sort of back-up justification -- I call it lagniappe -- for supporting a claim that "fundamental rights" cannot be violated by a state. Nineteen years later, in Casey, the Court backpedaled from calling abortion a "fundamental right," and instead called the choice to get an abortion a "liberty interest" that cannot be "unduly burdened," but still claimed that this liberty interest is protected by the DPC of the 14th. The Casey plurality opinion went on at great length to justify why they interpret the DPC as if it protects some substantive rights, and it never mentioned the 9th at all.

Justice Alito should have thoroughly refuted both the DPC argument and the 9th argument. He should have refuted the DPC argument by insisting that the clause does not mean, it was never intended to mean, anything more than the literal words themselves, which only ensure that fair procedures are used before imposing a punishment on anyone. Alito has not, in Dobbs, explained it that way at all. (I can tell, from his concurring opinion, that Thomas believes in saying that very thing - fair procedures, that's all - but Thomas probably couldn't get all five in the Dobbs majority to agree to say it that way.) What Alito DID say was to effectively concede that the DPC protects substantive rights, but gave the scope of those rights a very narrow and constrained interpretation. He cherry-picked his quotes from only certain precedents to justify that interpretation. But it is altogether appropriate for Court observers who read the opinion to perceive Alito's version of the DPC to simply be a conservatively-biased rendition of the DPC. And, very unfortunately, Alito never elaborated on the 9th at all.

So yes, I stand by my previous post in that other thread, and Bork was right to say what he did 32 years ago - "A more fundamental rethinking of legitimate judicial power than the mere demise of Roe would signify is required." That is still, as of now, completely correct.

[MarkD]

~~~~

Absolutely not!
In Roe, the Court cited the Due Process Clause of the 14th Amendment and took for granted that any and all "fundamental rights" are protected by that clause. Then the Court also added the 9th Amendment as a sort of back-up justification -- I call it lagniappe -- for supporting a claim that "fundamental rights" cannot be violated by a state. Nineteen years later, in Casey, the Court backpedaled from calling abortion a "fundamental right," and instead called the choice to get an abortion a "liberty interest" that cannot be "unduly burdened," but still claimed that this liberty interest is protected by the DPC of the 14th. The Casey plurality opinion went on at great length to justify why they interpret the DPC as if it protects some substantive rights, and it never mentioned the 9th at all.

Justice Alito should have thoroughly refuted both the DPC argument and the 9th argument. He should have refuted the DPC argument by insisting that the clause does not mean, it was never intended to mean, anything more than the literal words themselves, which only ensure that fair procedures are used before imposing a punishment on anyone. Alito has not, in Dobbs, explained it that way at all. (I can tell, from his concurring opinion, that Thomas believes in saying that very thing - fair procedures, that's all - but Thomas probably couldn't get all five in the Dobbs majority to agree to say it that way.) What Alito DID say was to effectively concede that the DPC protects substantive rights, but gave the scope of those rights a very narrow and constrained interpretation. He cherry-picked his quotes from only certain precedents to justify that interpretation. But it is altogether appropriate for Court observers who read the opinion to perceive Alito's version of the DPC to simply be a conservatively-biased rendition of the DPC. And, very unfortunately, Alito never elaborated on the 9th at all.

So yes, I stand by my previous post in that other thread, and Bork was right to say what he did 32 years ago - "A more fundamental rethinking of legitimate judicial power than the mere demise of Roe would signify is required." That is still, as of now, completely correct.

Recently I've been thinking about whether Dobbs will lead to the overturning of Griswold, and I've decided that Griswold will not necessarily be overturned. Assuming, for the sake of this discussion, that some state or local government is going to try to ban all contraceptives, like Connecticut had done around 143 years ago, or something similar, then there will be a case brought up to the SCOTUS, and the attorney who defends the new law will argue that Griswold was wrongly decided and should be overturned. But according to what Justice Alito wrote in Dobbs and what was written in Griswold by Justice Douglas and concurring Justice Goldberg, it is pretty well probable that Alito and one, two, or three of the other Justices in the Dobbs majority will NOT overturn Griswold.

Alito's argument in Dobbs, as I said above, was not that the due process clause does not protect any unenumerated rights (which I'm certain is what he should have said). He effectively conceded that the clause does protect some unenumerated rights, but he said that the rights protected are "deeply rooted in this Nation's history and tradition." The opinions Douglas and Goldberg wrote in Griswold does make that very assertion. Douglas said, "We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system." (He meant the right of privacy of married couples to their sexual intimacy.) Goldberg said, "In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the 'traditions and [collective] conscience of our people' to determine whether a principle is 'so rooted [there] . . . as to be ranked as fundamental.' " Furthermore, Goldberg also said,

Finally, it should be said of the Court's holding today that it in no way interferes with a State's proper regulation  of sexual promiscuity or misconduct. As my Brother HARLAN so well stated in his dissenting opinion in Poe v. Ullman, ... "Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . , but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, ..."

It seems to me that Alito and may be some others might find Goldberg's arguments persuasive that the sexual intimacy of a married man and woman ought to be considered as protected by the due process clause, and that they can simultaneously exclude the concept that other kinds of sexual intimacies are NOT constitutionally protected. So maybe they will uphold Griswold, but still overturn Eisenstadt v. Baird, Carey v. Population Services Int'l, and Lawrence v. Texas.